3rd Cir. Says Fax Requesting Completion of Customer Satisfaction Survey Was Not a “Solicitation” or Pretext for Same under the TCPA

In Mauthe v. Nat’l Imaging Assocs., No. 18-2119, 2019 U.S. App. LEXIS 11232 (3d Cir. Apr. 17, 2019), the Court of Appeals for the Third Circuit found that a fax was not a solicitation for goods and services.

Moreover, the fax did not tell Mauthe that he [*7]  could purchase healthcare management services from defendant or direct him to a website for the purposes of making a purchase. Rather, the single website in the fax to which Mauthe points explicitly informed him that he should visit the website for the purpose of completing the satisfaction survey, not to make a purchase. J.A. 32 (“You may also complete the survey at www.RadMD.com.”). Furthermore, the fax did not, contrary to Mauthe’s allegations, contain information that would induce a potential buyer to visit the website. Although Mauthe argues that the fax promoted defendant’s services as “easy to access,” “effective,” “convenient,” “provider friendly,” and “efficient,” see appellant’s br. 6-7, it did not claim that its services meet these standards. To the contrary, the fax asked if the recipient agreed with those descriptions of defendant’s services, thus suggesting that the recipient already had used defendant’s services. But asking a recipient in a survey whether a sender’s services meet a standard is not the same thing as claiming the services meet that standard. Thus, under the statutory definition of advertisement, the use of the foregoing terms did not make the fax an advertisement.3  [*8] 3 We recognize that there may be another way in which an unsolicited fax may be construed as an advertisement, i.e., a sender may encourage the recipient to use an item or service more often, even if the recipient does not purchase such item or service at all, because the increased usage directly would benefit the sender by increasing sales. A classic example would be a fax encouraging doctors to prescribe a certain drug more often, even though patients not doctors normally purchase drugs. However, Mauthe did not allege such a third-party scenario. We also point out that while Mauthe explains his theory of liability in his reply brief, see appellant’s reply br. 3-4, 8, we find no support for his explanation in the complaint. We need not “accept assertions in a brief without 7 Mauthe also contends that the fax was a pretext for commercial solicitation. See Fulton v. Enclarity, Inc., 907 F.3d 948, 954 (6th Cir. 2018) (“[T]he TCPA covers faxes that serve as ‘pretext for a commercial solicitation.'”)4 To support this contention, Mauthe alleged that when he visited the website listed in the fax, he was subjected to numerous advertisements about defendant’s services. J.A. 19. We fail to see how this circumstance established that the fax survey sent to him was [*9]  a pretext for more advertising. By Mauthe’s theory, any fax sent by defendant, for any purpose, as long as it contains defendant’s website address, could become a “pretext” to more advertising. We will not adopt a standard under the TCPA which effectively would construe the inclusion of a website address in a fax as de facto advertising. We want to make clear that we do not suggest that we endorse the pretext theory of liability under TCPA. We think that in almost all cases, a recipient of a fax could argue under the pretext theory that a fax from a commercial entity is an advertisement. The pretext theory, unless closely cabined, would extend TCPA’s prohibition too far. support in the pleadings. After all, a brief is not a pleading.” Chavarriaga v. N.J. Dep’tof Corr., 806 F.3d 210, 232 (3d Cir. 2015). 4 Mauthe’s citations to Physicians Healthsource, Inc. v. Boehringer Ingelheim Pharm.,Inc., 847 F.3d 92 (2d Cir. 2017), and Fulton v. Enclarity, 907 F.3d at 948, in his opening and reply briefs in support of his pretext assertions are inapropos, because in both cases, the pretext actions by the defendants were to create future opportunities to send more advertisements. 847 F.3d at 96; 907 F.3d at 955. This distinction is important because the pretext theory is predicated on the potential that a plaintiff may be harassed by even more advertising in the future. Here, there was no allegation that defendant intended to send Mauthe any [*10]  future faxes, let alone any more advertisements. 8 But we need not explore the boundaries of pretext liability any further because Mauthe’s claim could not survive the most expansive application of the pretext theory.5 We understand Mauthe’s real theory behind his claim, that defendant may have intentionally sent this fax survey to dozens of recipients unsolicited as some sort of nonobvious promotion of its services. However, even though the complaint makes generalized class action allegations, it does not specifically identify a single recipient of the fax that Mauthe received without solicitation, by a recipient other than Mauthe. If the complaint had included explicit factual allegations of other identified individuals receiving this fax survey without solicitation that circumstance might have been material to our analysis here, but it did not make such explicit allegations. Thus, the theory of liability based on a nonobvious promotion of defendant’s services through the sending of multiple faxes is a mere conclusory statement rather than a factual allegation. In fact, based on the factual allegations in the complaint, it was just as plausible that defendant sent the fax to Mauthe by mistake, [*11]  and not because defendant was attempting to make a sale to him. Even construing the complaint in the light most favorable to Mauthe, his allegations did not raise his TCPA claim above the speculative level. Accordingly, we 5 The pretext theory has its origin in a 2006 FCC rule, stating “any surveys that serve as a pretext to an advertisement are subject to the TCPA’s facsimile advertising rules.” Rules and Regulations Implementing the Tel. Consumer Prot. Act of 1991; Junk Fax Prevention Act of 2005, 71 Fed. Reg. 25967, 25973 (May 3, 2006). It is unclear if we must follow the FCC’s interpretation of the statute and adopt the pretext theory-in fact, in a different context the legal issue is currently before the Supreme Court in PDR Network, L.L.C. v.Carlton & Harris Chiropractic, Inc., No. 17-1705 (filed June 21, 2018). 9 find the District Court did not err in holding that the fax survey was not an advertisement, and we will affirm its April 25, 2018 dismissal order.6 6 Mauthe also argues the District Court erred by finding that he had a prior relationship with defendant, despite his contrary allegation, and the Court’s error colored its analysis. Because we affirm the Court’s order even accepting Mauthe’s allegation that he did not have a prior relationship with defendant [*12]  as true, we need not address this argument.